The High Court, sitting as the Court of Dispute Returns, has answered a question referred to it by the Senate on eligibility of being chosen under s 44 of the Constitution. The reference originally concerned then-Senator Jacqui Lambie’s eligibility under s 44(i), but following her resignation it focused on the eligibility of Steven Martin, another Senate candidate who, following a special count, was chosen to fill Lambie’s vacancy. The matter then focused on s 44(iv), which provides that ‘[a]ny person who … holds any office of profit under the Crown … shall be incapable of being chosen or of sitting as a senator’. Martin holds the office of mayor and councillor of Devonport City Council, a local government corporation established under the Local Government Act 1993 (Tas).

On 6 February 2018, the Court held that Martin was not incapable of being chosen or of sitting as a senator by reason of s 44(iv), and delivered its reasons for that answer on 14 March. The joint judges (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) first emphasised the importance of s 45(i), which provides that if a senator becomes subject to any of the disabilities in s 44, that senator’s place ‘shall thereupon become vacant’ (at [6]). The temporal relationship between ss 44 and 45 is the process of ‘being chosen’ in s 44 remains incomplete until a person not subject to a s 44 disability is validly returned as elected, whereas s 45 operates to vacate the place of a person validly returned who later becomes subject to a s 44 disability (see [7]). In this matter, there was no dispute that ‘the Crown’ refers to the executive government of a State, and no dispute that the offices of mayor and councillor in Tasmania are each an ‘office of profit’ (at [9]). The sole issue was whether those offices are ‘under’ the executive government of Tasmania (at [10]–[12]).

The joint judges then turned to the pre-Federation history of s 44(iv), noting that nothing in that history suggests it had a technical meaning at Federation, and that nothing in the drafting history suggests there was any significance for that choice of words (at [17]). Consequently, the joint judges saw pre-Federation history as ‘more enlightening as to the purpose of the disqualification’,

and the writings of Sir William Anson and W E Hearn reflect a rationale of first, securing the independence of Parliament from executive influence, and second, securing the ‘undivided attention’ of officials of executive departments to ensure civil servants remained permanent and non-political (at [18]ff). Moving to the purpose to which s 44(iv) is directed, the joint judges noted that two overarching considerations bore on the resolution of this matter ([22] and [23]):

One is the precept, endorsed in Re Canavan in relation to s 44(i) and applicable equally to s 44(iv), that the provision’s ‘limiting effect on democratic participation tells in favour of an interpretation which gives the disqualification set out … the greatest certainty of operation that is consistent with its language and purpose’. The other is the identification in Sykes v Cleary, consistently with the writings of Sir William Anson and Professor Hearn, of the ‘principal mischief’ to which s 44(iv) is directed in terms of ‘eliminating or reducing … executive influence over the House’.

More significant still is the function attributable to s 44(iv), conformably with that identified purpose, in protecting the framework for responsible government established primarily through the operation of ss 7, 24, 61 and 64 of the Constitution. The capacity for the Houses of Parliament to act as a check on executive action is essential to responsible government.

Section 44(iv), in conjunction with s 45(i), operates to protect the Constitution’s framework for representative and responsible government by limiting the Commonwealth executive’s ability to influence sitting senators and members by granting an office of profit: ‘the competing interpretations of the word “under” are appropriately evaluated by considering how they would operate to achieve that purpose’ (at [25]). The joint judges then noted that s 44 is not aimed merely at conflicts that an office holder might have and the duty the person would assume as a senator or MP (at [27]), but instead ‘can be seen to be quite narrowly tailored to eliminate a particular form of conflict of duty and interest’, specifically (at [28]):

The targeted conflict is between the parliamentary duty of a senator or member and a pecuniary interest of a kind which, if permitted, would give rise to a real capacity for executive influence over the performance of that duty. The particular form of conflict to which the first clause of the provision is addressed is that which would arise from a senator or member being able to hold at the will of an executive government an office in respect of which he or she receives a financial gain.

Sections 44 and 45, in combination, prevent a person who holds executive office from receiving any financial gain from being elected as well as being influenced by the prospect of future gains during their period of service as a senator or MP (at [30]).

Turning to the term ‘under’, the joint judges held that an office of profit is ‘under’ the Crown if the ‘holding or continued holding of that office, or the receipt of profit from it, depends on the will or continuing will of the executive government of the Commonwealth or of a State.’ (at [31]). This meaning of disqualification has two aspects. First, it disqualifies anyone holding an office of profit who was appointed by the will of an executive government (at [33]). As applied to the present matter, Martin does not hold an office of profit appointed by the executive government: mayor and councillor elected offices. (at [36]).

The second aspect is that it disqualifies anyone holding an office of profit that is not appointed by will of the executive, but where continued holding of the office or profiting from it is dependent on the will of the executive. Security of tenure, remuneration conditions, and the conditions of suspension or removal, and the withholding of office emoluments are all ‘of critical importance’ in determining if this meaning applies (at [34]). As applied to the offices of mayor and councillor, while these offices receive allowances (at [39]ff), and there is no doubt that the council holds governmental functions sufficient to make it a ‘State’ for the purposes of other constitutional provisions, there can be ‘no suggestion’ that a council, mayor or councillor form part of Tasmania’s executive government (at [41]). Contrary to the submissions of Ms McCulloch (another senate candidate party to this matter), various legislative provisions laying out the structure of Tasmania’s state and local governments do not grant the power to the executive to effectively control the holding or profiting from the offices or mayor or councillor (see [43]ff). While the Minister administering the Local Government Act may make orders delineating the functions of mayors and councillors, those posers do not extend to powers over the holding or profiting from those offices (at [44]). The provisions on suspension, removal and dismissal by or on the recommendation of the Minister can only be imposed as an exercise of statutory discretion, following an inquiry, and bounded by the subject matter, scope and purposes of the local Government Act: it does not rise to a level of control over those offices (at [45]–[49]).

Edelman J agreed with the conclusions of the joint judges, but rejected the two approaches urged by the various parties to the matter. Edelman J saw the submissions of McCulloch, Martin and the Attorney-General of Victoria as the ‘first approach’, in which ‘under’ required, in all cases, an evaluation of the incidents of office and the extent of control by the Tasmanian executive (at [55]), and the submissions of the Attorney-General of the Commonwealth as the ‘second approach’, which emphasised executive appointment and removal or alteration of remuneration at will as indicating an office of profit under the Crown (at [56]). In Edelman J’s view (at [57]–[59]),

If the matter were free from (i) the unchallenged authority of the decision in Sykes v Cleary, and (ii) the pre-Federation purpose and context, relevant to informing the meaning of the expression ‘under the Crown’ in the sense it was intended to have in its continuing operation, the choice might be between the first and second approaches. That choice would be one of degree. The question would be whether the preposition in the expression “office of profit under the Crown‘, in its unchanged, ordinary meaning informed by constitutional purpose, required complete control by the Crown over the appointment to the office, the removal from the office, or the profits from the office. On the Commonwealth’s submission, anything short of complete control, even complete control over appointment or remuneration subject only to disallowance by Parliament, would not disqualify.

Neither of these approaches should be accepted. The meaning of the expression “office of profit under the Crown” in s 44(iv) of the Constitution had crystallised after two centuries of legal usage prior to Federation. As Sir Samuel Griffith QC said in submissions in 1889, it was ‘an old phrase, well understood in relation to parliamentary law‘. Although its application to particular facts was not always simple, the phrase encompassed (i) offices ‘from’ the Crown, where the holder was appointed by the Crown, and (ii) as decided in Sykes v Cleary, offices, whether or not from the Crown, which involved employment by the Crown. Prior to Federation, this second limb of an office ‘under the Crown’ had been described as membership of the public service. In Sykes v Cleary, Mason CJ, Toohey and McHugh JJ, whose reasons concerning s 44(iv) were the subject of express agreement by Brennan J, Dawson J and Gaudron J, applied this second limb, explaining that it had been accepted in England and Australia that an ‘office of profit under the Crown’ encompassed public servants and that the disqualification embraced ‘at least those persons who are permanently employed by government‘.

This second limb was the reason why the Court held that Mr Cleary, who was employed by the Crown but plainly could not be dismissed at will, was disqualified by s 44(iv). It is also the reason why Mr Martin, who was not employed by the Crown, was not, and is not, disqualified. For these reasons, set out in more detail below, I joined in the orders made.

Edelman J then turned to his own reading of the pre-Federation history and distinction between offices ‘from’ and ‘under’ the Crown and Anson’s work (see [60]ff), before comparing Martin with Cleary’s office as a teacher (at [78]ff) and concluding that Martin did not hold an office under the Crown ‘because he was neither appointed, nor employed, by the executive government of the State of Tasmania’ (at [80])